Preliminary Case Management

Hello. My name is Allison Arch. And can I welcome you to this data lore Webinar on preliminary case management in civil trials over the course of the next half hour. So I'm going to be dealing with a number of issues relating to the preliminary stages off when they claim is issued in the civil courts. Some of the things I'm gonna be talking about we'll deal with that initial process. We'll look at general principles of case management. What happens when it claims lodged and the defense has put in when he gets the stage of close of pleadings. How the court will deal with such a claim. I'll then look at the allocation to the various tracks that are available within the civil jurisdiction, will then spend a bit of time looking at the directions questionnaire, which each party will have to fill in a spark of the case management process, along with a cost estimates. Finally, I will deal very, very briefly with non compliance for failure to comply with directions on, then wrap up with a few general matters on a general case management and preparation for a trial. So let's start with some general principles. Why do we have a system of case management? Well, it's relatively straightforward. It does what it says on the tin on the courts have to be ready and available to manage cases in an efficient and cost effective way. Remember, of course, that everything goes from the if you like the foundation off the overriding objective, which can be found in CPR, that is, to deal with cases justly on by dealing with them justly means they must be dealt with in a cost effective and proportionate means. The first general principle of case management is obviously to progress. A matter to trial attorney. End of the day a claim has been issued, it has been, is being defended on. Therefore, the courts have to take some hands on approach to be able to get that claim through two full hearing. And in essence, what the case management process does or one of its functions is to allow the parties to focus on the live issues in each particular trial after the defense has been filed. Of course, in terms of general pleading, a defense usually will do one of three things with an allegation in a set of particulars of claim. It will either admit it. It will not admit it. Therefore, putting the claimant proof of that allegation, or it will deny it on put its own spin on the particular allegation. In order for parties to narrow the issues between them, even a superficial glance at the particulars of claim in the defense may often narrow the live issues between the parties flowing from that. We have, of course, then disclosure, where documents that each party will be wishing to rely on will be disclosed to the other, usually by way of list, followed by the process known as inspection, where each party sends copies of the documents to the other party so that they can see the documents which are supporting the case. Those which adversely affect the case it central. As the Matha gets closer to trial, of course, the issue off witness statements becomes a live issue, and here we're talking about witness statements. Fact those are the witnesses that will be coming along to court toe actually tell the court what actually happened on a particular day at a particular time. But of course, there is another aspect of some trials that is where expert evidence is involved on again. Part of the disclosure process or part of the witness statement process will involve the disclosure in the preparation of expert reports. Principally a common example, of course, is post personal injury cases where expert evidence may be needed to deal with any injuries that the claimant sustained in more complex litigation, for example, construction litigation. It may be that there are expert reports needed on the composition of brick dust by way of example, thinking back to a case that somebody told me about some years ago on once all that has been put together. Once all that has been compiled, you are then ready as the solicitor or as the advocate with conduct of the case, to prepare that matter for a trial. So where does it all begin? Well, let's assume for the moment, of course, that we have dealt with the preliminaries off any pre action protocols that may apply on that. We have lodged a claim form and a set of particulars of claim, and there has been a defense, the first stage following what I what I called close of pleadings, perhaps in an old terminology, but I still think that the phrase is valid. Today is the provisional allocation of the claim to a track. Now this is governed by CPR, 26.3 on. In essence, this could be done by a court officer. It's an administrative act whereby the court officer will decide based on the papers that have come in the particulars of claim in the defense, the most appropriate track for that particular claim. On as many of you will know, in civil proceedings, there are three tracks. There is the small claims track the fast track on the multi track. Let's look at those claims of those tracks in a little bit more detail, if we may starting, of course, with the lowest of the low. The small claims track, CPR 26.61 says that the small claims track is the appropriate track for any claim involving personal injuries, where the value of the claim is not more than £10,000. On the value off the general damages that is those for pain suffering. Loss of immunity is not mawr than £1000 so we're talking here about low level litigation, another attractive feature of small planes tracking terms. For those of you who do property law in terms of landlord and tenant, any claim by a tenant that is brought against a landlord for cost of repairs. If that the value of those repairs does not exceed £1000 on the damages claim does not exceed £1000. Then again, the small claims track is the appropriate track for that particular claim. Finally, the third capturing the residual category, if you like for small claims litigation, we find that in CPR 26.3 on that is any claim with a value off not more than £10,000. So if the court officer, upon seeing the particulars of claim in the defense, can discern from those pleadings that we are looking at a low value claim in other words, anything below the £10,000 mark, it is likely and will be allocated provisionally to the small claims track. The second track, of course, is the fast track. This was the great invention that came in with wolf reforms back in 1998 on Desert, a slightly higher tier than the small claims track. The allocation to the fast track is governed by CPR, 26.4 on it simply provides. In general terms. That claim will be allocated to the fast track, where the small claims track is not the normal track, so declaim that doesn't have a value of less than £10,000. But it will be allocated to the fast track if the value is of not more than £25,000 so it's a slightly higher value tear. However, the fast track, being fast for want of a better phrase, has some further conditions to it. In order to be allocated to the fast track, it must appear, at least on the basis of the papers, that the trial will last no longer than one day. Fast track cases are those that are listed for one day and no more on. Therefore, if there is a chance that a lot of witnesses will be involved, the fast track may not be the most appropriate track because one needs time to deal with all the witnesses involved. The other condition for allocation to the fast track is, of course, that there will be no more than one expert per party if it is a case in which expert evidence is likely to be needed. Finally, the third track, of course, is the multi track. This is governed by CPR, 26.6 on it is quite simple. The multi track is the correct track for any claim that doesn't fall under the small claims track jurisdiction or indeed under the fast track jurisdiction. So, in other words, any claim in excess of £25,000 is gonna find itself on the multi track. Any claim that is perhaps between 10,000 and £25,000 but is going to last longer than one day will obviously find itself on the multi track. Once the court officer has made the preliminary diagnosis of the claim and allocated to a particular track, the parties will be sent on important document known as a directions questionnaire. Now, upon receipt of that preliminary notice of allocation, the parties are to file with the court and serve on the other parties a directions questionnaire. Now, in filling in that directions questionnaire, there is a requirement off cooperation. Parties to litigation are are encouraged to cooperate with each other in filling in that form there must be consultation between the parties in order to try and get a consensus as to where the particular that claim is going in terms off the actual practicalities of the directions. Questionnaire. I don't need to run through the contents of the entire form. You could find the various aspect off directions. Questionnaires are online. For example. In the fast track are the directions. Question. There must be based on the contents of CPR Part 28 which governs the fast track in more detail on Indeed, in the multi track one just needs to go online to the justice dot gov dot UK website, where one can find a basis four directions on the multi track. If the notice off provisional allocation is not accepted by either of the parties or any of the parties of it's a larger piece of litigation, then they can inform the court of that fire. The directions questionnaire Andi formal allocation or reallocation of the claim will be carried out by the court. If the matter is in the high Court, this will be done by the High Court master on. If it is in the county court, then obviously the district judge will carry out the process off allocation If there is a serious dispute between the parties as to which track is the best track for the claim in exceptional circumstances, the master, all the district judge will convene what is called an allocation hearing. That is where representatives of the parties will come before the court. I will love you. For example, Wire claim maybe has a value of less than £10,000 on should be allocated to the small claims track or, in the same case, three other party, maybe argue it's actually got a value £50,000 on. Therefore, it is better placed on the multi track. Because there are a number of witnesses on it will certainly last longer than a day. Therefore, the fast track is not the most appropriate track in my experience. It is rare for allocation hearings to be held, usually in the main. The court officer will actually get it right upon a perusal of the papers. To allocate the claim to the direct, the correct track writer started the process on dim variably. Most parties to litigation in my experience will always accept the the decision of the master or the district judge if there is any ambiguity as to the particular track to which a claim should be allocated. Of course, track allocation is important for the purposes of costs you will know from your reading and perhaps from other sources that in fact, on the small claims track, the recovery of costs is very limited. There are only specific matters under a fast track claim that can be recovered by parties by way of costs. Onda locals on the multi track, this is a large litigation. There are costs rules for that in order for the successful party to recover their costs. But this webinar is not a cost webinar there is. Some of you may have watched it a cost webinar available via data law. If you want to have Atmore information on costs, let's turn now Teoh the standard directions that are given for each off the claims. Once the directions question and goes in. If a claim is under the small claims track, then usual very general on basic directions will be given. You'll find these in practice direction. 27 sub paragraph 10 on They made general provisions for disclosure in other words, the parties will disclose the documentation upon which they're relying on the documentation which will adversely affect that case. There is also on to this day I've still never really understood it. But the original documents are to be brought to the hearing in a small claims track. I have no real idea why. That is why people can't rely on photocopies, I don't know, but that is art off the standard directions on the small claims track. Also on the small claims track, the court, by way of a direction, encourages the part all the parties to try and settle the matter, to try to resolve the disputes without the need for a hearing on, Of course, in small claims that matter. There is never any expert evidence. One of things that's always possibly, of course, is that there is no automatic direction under the small claims track for the filing and serving off witness statements. That is a what one might call a special direction that is provided for but is not given out as a standard direction on the small claims track. Even though we're only dealing with small claims track, it is wise in my view for parties toe have witness statements. After all, the judges will absolutely love it if, rather than having to hear life evidence, they're actually hearing evidence being given by way of witness statement, which is which they can read in advance. And they know absolutely everything there is to know about the case. So a little tip. Don't just assume that standard directions homeless. Full claims tracker. Probably the most important aspect off case management. They aren't. Always make sure you check as to whether any additional directions will be required in order to progress matters further through to trial. Witness statements make life a hell of a lot easier. Can I turn now to the standard directions that are given out on first track? Claims? Small claims track we've dealt with and is relatively straightforward in practice. Direction. 28.3 Off the civil procedure rules. There are some standard time frames given for the conduct of a fast track trial. Now, remember, back to allocation of fast track trial is a case that is only gonna last one day. Andi has a value of up to £25,000. What happens in that type of case. Well, there is even not just the directions, but there is also a suggested timetable that is set out in practice direction 28.3. Obviously, these things can be varied with agreement of the parties and maybe by order of the court. But the standard procedure will be that disclosure will take place within four weeks, off the directions being sent out. It is then anticipated that witness statements those are, of course, witness statements off fact will again be prepared and exchange within 10 weeks off the directions being sent out. Expert reports. If there are any on fast track claims, they follow four weeks later, so expert evidence within 14 weeks on, then within 20 weeks, the parties will send to the court into each other. They're pretrial checklists. Or rather, the court will send it out to the parties within 20 weeks. The parties will then file that completed pretrial checklist within 22 weeks, and it is anticipated in most fast track trials that the matter will get to trial within a period off 30 weeks. So hence why it is called the fast track. It is anticipated that it will be litigation that gets to trial in little over half a year on. In my experience, most fast track trials do stick to this particular timetable. Otherwise, why is it called the fast track? It is a fast way of getting to justice on a fast way off. Resolving a claim. Can I also encourage you to look at the appendix to practice Direction 28 which actually sets out in direction, form the various directions that will be given by the court? Obviously, I've dealt there with the timetable ing of off slightly general matters. But if you need the specific directions for each off the masters, we've looked at the disclosure expert reports, witness statements, etcetera. The actual draft directions you'll find in the appendix to practice direction 28. As far as the multi track is concerned, I need say very little about that. The multi track has some more detailed directions. It's obviously larger litigation, and as I say, you can find the standard form for those on the justice dot gov dot UK website Ondas. We know from the earlier stage that what what the CPR says in Part 26 for initial case management is the any directions on the multi track will actually mirror those directions that are set out online. Another thing the parties have to deal with at early stage is the costs estimate now. Ah, lot of people involved in litigation never really like to talk about the C word, but now it is an essential feature off preliminary case management. ONDA costs Budgets are now an essential feature off all multi track cases. The president or the form that has to be filled in to give your on you to give your cost estimate is known as President H on that particular form. If you want to find it online, it is annexed to practice direction. Three e off the civil procedure rules, and it is it is an incredibly detailed document. Parties are required to give an estimate off the costs that they will incur throughout the litigation. This is to ensure that once a judge sees the cost estimate that they can ensure that the litigation is being handled proportionately on defectively and justly in accordance with the overriding objective. It used to be the case on the multi track the costs estimate in terms of a detailed form were required in every case. That is no longer the case. Since the first of April of 2000 and 16 there has been a change to the way that costs estimates are done on in essence, and you'll see it. If you look at precedent dates, you'll see that it's got a number of pages. But the first page is important because the first page provides a sort of breakdown, a sort of overview off the cost position on. If your budgeted costs do not exceed £25,000 or the value of the claim on the multi track is less than £50,000 then you only need fill in the first page off President H on this that this was a change in 2016 to make the process slightly more manageable. In other words, in smaller and I don't mean smaller in terms of small claims track, but in smaller litigation what you could on the multi track. It therefore means that the cost position one doesn't have to go into much detail on it because off the value of the claim off course, if your projected costs exceed £25,000 or the value of the claim is over £50,000 as it will be in many cases on the multi track in the eye. Kordell the county court. Then obviously you have to complete the whole off president age filling in the various amounts for the amount of time with solicitors going to spend dealing with the case and the amount of counsel's fees that may be incurred. But But, as I've said, if the value of the claim is less than £50,000 or your costs budget is not going to exceed £25,000 then you can get away with just filling in at the first page. I know I come to the final aspect off this particular webinar on one of which I could deal with very quickly. Obviously, directions are given for a Reese, that is, to progress a matter for trial and to ensure that the parties are on an equal footing on to ensure that the litigation is being dealt with justly off course. It may well be the case that a certain parties of litigation does not comply with the directions that have been given by way of example, witness statements are to be exchanged by a particular date on a party is not ready for whatever reason to exchange witnesses on that date. Where there is a failure to comply with a direction, which in essence is a called order, the court can apply a sanction. There may be a cost sanction. There may be a striking out, although one would consider that somewhat draconian. But invariably there will be some form of penalty that is imposed on a party off course. The best advice I can give you is to make sure that on a particular case on a particular piece of litigation, that you have a clear plan in place in order to make sure that you and your client are able to comply with the necessary direction on time. The last thing you want is a sanctions being imposed upon you for not complying by a particular date on. This could be done very easily. I mean, I know one of my instructing solicitors is very keen on this on whenever they have got a trial litigation on the cover, they have a wall planner on their wallets, massive thing covering the entire year on the various dates in a particular case by which certain act needs to be done are clearly plotted out on that wall chart so they can see clearly what they have got to do and by when they have got to do it off course. If the court does impose a sanction on a party, it is possible to obtain relief from that particular sanction if it was imposed wrongly. Or indeed, the reason for the breach was minor or trivial. Thankfully, I'm not going to get to go into any of that a particular aspect off relief from sanctions as part of this webinar. What I can tell you is that data law on its me again, we have offered a webinar 25 minute webinar devoted to relief from sanctions on. So if you are going to learn a little bit more about that particular aspect of things, then please do sign up and watch that particular webinar. Although I used the word keen somewhat reserve innately because if you are king to watch that, it means that probably in certain cases you have been guilty of not complying with directions or called orders, be that as it may It's certainly a webinar that is worth watching to complete your knowledge. Finally, it would just let me say a few things about preparing for trial. I've already said staff of this weapon now that one of the things that parties are encouraged to do by virtue of the civil procedure rules is to cooperate on the last thing you want to be doing in the run up to litigation is attempting to score points with the your opposite number or other parties involved in a case. The whole point of case management is to get the case ready for trial on at every stage of the process. You should be thinking about maybe trying to settle the case. Is there another way to resolve the dispute? These things should be constantly in your mind as you go through the various preparatory steps for trial. And don't be afraid of being realistic. If the court sort of decides that you know it's going to say that witness statements are going to be a by a particular date in it, or to be filed and served by a particular date on, you already know that you have got a three week holiday in the mall deeps in the lead up to that particular date for the exchange of witness statements. Tell the court, tell the other side be realistic and be frank in setting the dates to ensure that you will be able to comply with the various directions that are imposed. The other thing that slightly upsets me and I've seen this in a number of cases is now a sort of almost a sort of attitude in the lead up to a trial where you try and score points against the other side. That doesn't really get you anywhere. What I would suggest is that you are always courteous when liaising with the court. Be courteous when you are liaising with the other parties. At the end of the day, it's gonna be the judge who decides who is gonna win the case. It was gonna lose the case. It is not down to a scuffle or a fight between you and your opposite number. In preparing for the trial, finally make sure you have a client focus. What do I mean by that? I mean, try and involve your client at all stages of the process. They're obviously going to have to have witnesses to write their statements on. Make sure, at every stage of the process that your client is going to be able to deliver on the various directions that have put in place by the court that they ultimately are gonna have to comply with. Well, there we are. I hope that has been of some use and introducing you to the very early stages off case management. I hope you've enjoyed the webinar on. I look forward to seeing you again.